E.A.H. v. C.R.H. Date:, 2015 BCPC 13

Citation: E.A.H. v. C.R.H. Date: 20150204 2015 BCPC 0013 File No: 62509 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.A.H. APPLICANT AND: C.R.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: S. Bartlett

Counsel for the Respondent: B. Soloway Place of Hearing: Nanaimo, B.C. Date of Hearing: February 4, 2015 Date of Judgment: February 4, 2015 [1] Mr. H. applies to vary the terms of a final order made by this court, by consent, on August 31, 2012, as they pertain toparenting time with, and parental responsibilities for, his son. [2] Mr. Bartlett and Mr. Soloway asked me to rule on a question of law as the first item of business on the application, beforehearing any evidence.

Ordinarily, I would decline such a request, on the premise that legal principles should not normally be decided inthe absence of a factual matrix established by evidence or agreement. In this case, I acceded to the request because the hearing may besignificantly abbreviated if the question is decided in Mr. H’s favour.

I am conscious that litigants in this court are often people ofmodest means, and that the court should do what it can to minimize the cost of the proceedings. [3] The question arises from section 215(1) of the Family Law Act SBC 2012, c 25, which provides: Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change incircumstances since the order was made. Mr.

Bartlett submits that the condition precedent to jurisdiction (a change in circumstances) does not apply where the order sought to bevaried was made by consent and without an adjudication on the merits. Mr. Soloway takes the contrary view. [4] Before addressing the question, I pause to observe that the phrase employed in section 215(1) is “… a change in circumstances…”, while the phrase considered in the leading authorities is “… a material change in circumstances …”: Gordon vs Goertz (SCC), [1996] 2 SCR 27 at paragraph 12.

However, it has been held that the change in language has not effected a change in thenature of the condition precedent to jurisdiction - the applicant continues to carry the onus of establishing a material change incircumstances: J.V.G. vs E.T. 2014 BCPC 307 at paragraph 16. [5] Mr. Bartlett points out, and Mr.

Soloway concedes, that: a. the need to establish a change in circumstances does not apply where the document which is sought to be varied is an agreementof the parties, rather than a consent order; and b. that is so even where the agreement was filed in the Registry, and so is enforceable as a court order under section 42(3) of theFamily Law Act. Those propositions are clearly established by C.R.H. vs B.A.H. 2005 BCCA 277; 42 BCLR (4th) 230; 13 RFL (6th) 302. The rationale forthose propositions might be expressed in a variety of ways.

In Kamimura vs Squibb (1988) (BC SC), 13 RFL (3d) 31,the rationale was expressed to be that the parties may not, by agreement, oust the jurisdiction of the court to do what is in the bestinterest of the child. It might also be said that the court has a responsibility to children, which it ought not to cede or delegate to theparents. Family cases differ in this way from commercial cases, in which it is generally thought that parties should be held to theiragreements, and that the public interest in finality of litigation is of importance: James vs British Columbia 2007 BCCA 547; 73 BCLR (4th) 301. [6] Mr.

Bartlett says that there is no principled reason to draw a distinction between agreements between parents, on the one hand,and consent orders, on the other, in relation to the question now under consideration. Each is reached by the same process, a negotiationbetween the parents. If the agreement is filed in the Registry, as was done in C.R.H., each is equally enforceable, by the same courtprocess, and in the same way. In neither case does the court hear evidence or perform any adjudication on the merits. Mr.

Bartlett saysthat it should logically follow that the rationale for dispensing with the need to demonstrate a material change in circumstances shouldapply equally to each. So, he says, if the condition precedent set out in section 215(1) does not apply to agreements between parents, itshould not apply to consent orders. The point made by Mr. Bartlett was raised, but not decided, by Justice Slade in J.(J.S.) vs J.(R.J.)2008 BCSC 399 at paragraph 42.

I was referred to no case in which it has been expressly decided. [7] If the question on this application were free from authority, I would be persuaded by the inherent logic of Mr. Bartlett’ssubmission. However, there are a number of cases, binding upon me, in which it has been held that a material change in circumstances isa condition precedent to jurisdiction to vary a consent order in relation to parenting time or responsibilities. See, for example, J.W.M. vsJ.L.M. 2012 BCCA 324 at paragraph 36, and Jellis vs Jellis 2014 BCSC 375 at paragraphs 23 - 26.

Jellis is particularly notable becauseit was decided under the Family Law Act, which replaced the Family Relations Act in 2012. [8] It is true that the line of argument advanced by Mr. Bartlett is not mentioned in those judgments, and it is likely that it was notadvanced when those cases were argued. However, I do not think it open to me to decline to follow a binding authority on the premisethat it would have been decided differently if it had been argued differently.

I am forced to the conclusion that I have no jurisdiction to vary the consent order in this case unless a material change in circumstances isestablished.

February 4, 2015 ___________________________ T. Gouge, PCJ